Critical Study of the Definition of Contract in Iranian law with a Focus on the Interpretation of Article 183 of the Iranian Civil Code based on the Nature of Contract under Imamiya Jurisprudence, English law and French law

Conflict in the general definition of ‘contract’ in Article 138 of the Iranian Civil Code and also conflict between this definition and the other definitions of contract in instances such as sale contract in Article 338 of the Iranian Civil Code, are amongst controversial issues. Article 138 of the Civil Code has not acted uniformly in defining the contract. On the one hand, this article defines ‘contract’ of an obligatory nature, and on the other hand, in Article 338, it is defined referring to the nature of examples of ‘contract’ with vesting ownership. This duality in the definitions of contract has given rise to this debate of how ‘vesting ownership’ can be perceived as ‘obligatory’ nature. To solve this conflict between the two concepts of ownership and obligation, some solutions have been expressed by Iranian legal scholars, but they have not been successful in resolving the conflict. Therefore, the question of the present research focuses on the feasibility of resolving this conflict. The hypothesis of this article can be formulated as follows: "The existing conflict is one of the examples of fundamental conflicts in the Iranian Civil Code which cannot be resolved.” This hypothesis will be presented in the course of this research by examining the dual roots of the Iranian Civil Code in the Roman-Germanic tradition and the jurisprudential (Fiqh) tradition. The present article refers to the viewpoints of jurists (Fuqaha) and lawyers by an inferential-interpretive method in the subject of the article, and then proves the validity of the above-mentioned hypothesis by means of interpreting and criticizing their theories.